Enacting The National Public-Service Law
Japanese Handling Of The Hoover Draft
So long as the Occupation adhered to the policy of indirect rule, it was the responsibility of the Japanese to turn the draft into a law. Furthermore, if the goal of effecting fundamental reform that would outlast the Occupation was to be attained, it was imperative that the Japanese be persuaded of the intrinsic merits of the draft. Viewed from this perspective, the apparently high-handed manner in which the
[28] Ibid., p. 252.
[29] Ibid., p. 253.
[30] Ide, Nihon kanryosei , pp. 183-90; Asai, Shinpan kokka komuinho seigi , pp. 2-3; Ward, "Reflections on the Allied Occupation," p. 509.
Hoover mission behaved was bound to be counterproductive in the long run. The personality of Blaine Hoover appears to have been a source of difficulty, for he was perceived by the Japanese as arrogant, arbitrary, and insensitive to Japanese needs.
The cabinet legislation bureau and the administrative research bureau worked jointly on the translation of the draft into Japanese, completing the task within a week. The Japanese version laid bare numerous problem areas. For one thing the articles were overly long. In many cases, what would normally require twenty separate articles in a Japanese statute was jammed into a single article. As for its substance, the Japanese were particularly struck by the extensive powers and special status of the proposed National Personnel Authority, the prohibition of strikes by government employees, and the position of the Emperor. After dividing the national public service into the regular government service (ippan shoku ) and the special government service (tokubetsu shoku ), the American draft had listed the Emperor under the latter.[31]
Even though the new constitution of Japan that had just entered into force formally downgraded the Emperor to a mere "symbol of the state and of the unity of the people" (art. 1), the Japanese found it hard to swallow the notion that the Emperor was a tokubetsu shoku employee of the Japanese government, along with the prime minister, ministers of state, vice-ministers, ambassadors, judges, and other high-ranking officials.[32]
The Japanese version of the draft was circulated among all government ministries and agencies, and their views and comments were solicited. On the basis of the latter, the administrative research bureau, in collaboration with the cabinet legislation bureau, prepared a memorandum on "Opinions on the Draft National Public-Service Law." The memorandum, dated 24 June 1947, acknowledged the need for a "fundamental reform of our country's bureaucratic system" so as to enable "national public servants" to become the "servants of the people in a true sense," noted that the draft was designed to fill that need, and stated that the document, on the whole, was an acceptable one. However, it added, there were a number of problems from a technical standpoint as well as from the perspective of the new constitution and
[31] Ide, Nihon kanryosei , pp. 190-91.
[32] The constitution was promulgated on 3 Nov. 1946, and entered into force on 3 May 1947. It replaced the Meiji constitution of 1889. See SCAP, Political Reorientation , pp. 82-118.
other related laws that needed to be ironed out before the draft could be fully accepted. It then enumerated ten points:
1. It is not clear whether the National Personnel Authority will be independent of or subject to the supervision of the prime minister; it will be necessary to make the status of the authority consistent with the constitution that enshrines the basic principles of a parliamentary cabinet system (gi'in naikakusei ).
2. The draft lacks any provisions regarding the status of officials, such as a guarantee against arbitrary dismissal. Even though the gap may be filled by regulations of the authority, the basic principles on this issue should be embodied in the proposed law.
3. The draft states that regulations issued by the authority (Jinji-in kisoku ) shall have the same effect as laws and that its decisions shall be final and not subject to judicial review. This raises questions about the authority's relationship with the Diet and the Supreme Court and ought to be changed.
4. The scope of this law ought to be limited so as to exclude the Emperor, court employees who are not judges, employees of the public prosecutor's office (Kensatsucho), and teachers.
5. The organization and finances of the National Personnel Authority are questionable. It may be advisable to delete the provisions that confer special status on its president and commissioners as well as those dealing with its finances.
6. The significance of promotion examinations remains unclear; it seems unwise to base all promotions on the results of examinations.
7. There is a need to clarify the meaning of the provisions regarding strikes by employees.
8. The provisions dealing with punishments need to be streamlined and made more explicit in accordance with the principle that all crimes and punishments ought to be determined by law (zaikei hotei shugi ).
9. The format of this law should be changed to conform to that of other Japanese laws.
10. There is a view that the draft should be so revised as to make it applicable to local-government employees as well.[33]
[33] Ide, Nihon kanryosei , pp. 191-92.
The preceding views were conveyed to the American authorities on 26 June in a document that had been especially drawn up for that purpose. The Japanese argued that stylistic changes were necessary to dispel the impression that the law was of foreign origin. Substantive changes were justified on the ground that, without them, the Japanese government would lack the confidence to submit the draft to the Diet as its own and to argue convincingly and responsibly for its passage. Stressing that it had no objections whatever to the purposes and general principles of the proposed law, the Katayama government appealed for American cooperation in adapting the draft to the realities of Japan.[34]
These were indeed compelling arguments vis-à-vis the Occupation, which officially adhered to the policy of government by leadership rather than by direction and had reiterated the view that the Japanese must be allowed to develop institutions suited to their own needs if the democratic experiment was to succeed. Nonetheless, Hoover told Prime Minister Katayama that since the charge given to him by General MacArthur was to ascertain whether the Japanese government accepted or rejected the draft in its entirety, he lacked the authority to forward a conditional answer. He did, however, intend to report to General MacArthur that the Japanese authorities concurred in the aims and basic ideas of the draft and predicted that discussions with the Japanese would soon begin. Incidentally, Hoover reportedly insisted on dealing only with the prime minister. On 3 July, Hoover asked the Japanese government to submit proposed changes in the form of draft legislation by 7 July. Katayama sought and received an extension of this deadline to 31 July.[35]
On 10 July, Hoover left Japan for the United States on an extended leave, entrusting the task of overseeing the passage of the proposed law to C. P. Marcum, his deputy in the civil-service division. The Japanese, recalling the maxim "oni no inai aida no sentaku" (doing laundry while the devil is away), worked feverishly to produce their own draft legislation incorporating all desired changes, both stylistic and substantive. In a covering letter accompanying the new draft sent to the government section on 31 July, Prime Minister Katayama minimized the importance of proposed changes, saying that they were either stylistic or minor. "Although [the revised draft] may appear to be considerably different from your original draft," he said, "it is not substantially
[34] Ibid., pp. 192-94.
[35] Ibid., p. 194.
different from [your draft] in terms of basic principles." The key changes cited in his letter, nonetheless, were revealing. The power of the National Personnel Authority would be reduced by, inter alia, omitting the provisions dealing with its finances that would have given it a measure of independence in budgetary matters; the authority's power to enact regulations having the effect of law would be reduced; and key provisions dealing with the prohibition of strikes by public servants would be deleted.[36]
Significantly, all of the preceding points remained intact in the final version approved by the government section on 26 August 1947. What is more, when the Japanese authorities failed to resolve a dispute pertaining to a key concept in position classification with Marcum, it resorted to the devious tactic of leaving it in the English version but deleting it in the Japanese version. Needless to say, it was the latter that was submitted to the Diet for approval. The subsequent discovery of this ploy by Hoover led to the temporary abolition of the cabinet legislation bureau.[37]
Up to this point, at the request of SCAP, all the information regarding civil-service reform had been withheld from the public, including members of the Diet. The publication of the draft by the Katayama government on 27 August, three days prior to its formal submission to the Diet, therefore marked its entrance into the public arena. Press reaction was generally favorable. Major dailies endorsed the proposed legislation; they noted that the establishment of the National Personnel Authority and the proposal to use examinations not only for recruitment but also for promotion would help bolster the merit principle, place personnel administration on a scientific basis, and improve efficiency, equity, and objectivity.[38]
The reaction of other groups, on the other hand, was far from favorable. Even the Japan Socialist party, the senior partner in the coalition government of Katayama, voiced reservations in the Diet. The Socialists were concerned that the draft's emphasis on preserving the independence and political neutrality of civil servants and on promoting
[36] Ibid., pp. 194-96.
[37] Ibid., pp. 196-97; Asai, Shinpan kokka komuinho seigi , p. 3. The disputed concept was "class" in English and shokkyu in Japanese. The two sides could not agree on its precise meaning or importance in position classification. The Cabinet Legislation Bureau was abolished on 15 Feb. 1948, and reestablished on 1 Aug. 1952. Naikaku Seido Hyaktunen-shi Hensan Iinkai, ed., Naikaku hyakunen no ayumi [The Path of One Hundred Years of the Cabinet] (Tokyo: K. K. Okyo, 1985), pp. 129 and 137.
[38] Ide, Nihon kanryosei , p. 198.
technical efficiency entailed the risk that the supreme goal of democratization might be compromised. The greatest danger, in their view, was not the patronage system but the feudalistic, faction-ridden, and privilege-conscious nature of Japanese bureaucrats. They favored the replacement of the National Personnel Authority with a five-member personnel committee (Jinji Iinkai) and the introduction of a free appointment system (jiyu nin'yo seido ) for officials above a certain level that would rely on the evaluation of candidates by the personnel committee. Such a system would, among other things, open the way for the appointment (that is, lateral entry) of experts from outside the government.[39]
The view that the goal of democratization should take precedence over all others was echoed by the Association for the Study of Public Law (Koho Kenkyukai). The association called for the introduction of an impeachment system for corrupt officials, for further limitation of the authority's rule-making power, for the adjustment of official nomenclature to eliminate undemocratic connotations (for example, the deletion of the suffix kan from titles of public servants), and for the protection of the rights of lower-grade employees to guard against discrimination.[40]
The Coordination Council for Public Service Unions (Zen Kanko Rodo Kumiai Kyogikai or Zenkanko) also found the draft to be weak, even retrogressive, from the standpoint of democratizing the bureaucracy. It was particularly disturbed by what it saw as the denial of fundamental rights of public servants, notably labor-related rights, arguing that such matters as their status, separation, and compensation should not be covered by the proposed law but be subject to labor legislation and contracts. The Zenkanko also favored replacing the National Personnel Authority with a personnel committee, restricting its rule-making power, and expanding the scope of free appointments. It further called for the abolition of educational requirements in civil-service examinations, the guarantee of the freedom of political activity by public servants, and the substitution of a social-security system for a pension system.[41]
[39] Ibid., pp. 199-200.
[40] Ibid., pp. 200-201.
[41] Ibid., pp. 201-2. The phrase "educational requirements" needs to be clarified. Theoretically, "graduates of a middle school or recognized equivalent" could take the higher civil-service examination under the old system by first passing the preliminary examination. "Graduates of a higher school or recognized equivalent," however, were allowed to skip the prelim. In reality, most of the successful candidates had some college education. Spaulding, Imperial Japan , p. 262.
A surprisingly large proportion of these ideas found their way into the national public-service law that was approved by the House of Representatives of the Diet on 15 October and by the House of Councillors the following day. The National Personnel Authority thus gave way to the National Personnel Commission; the term of office for its three members was reduced from six years (renewable up to eighteen years) to four years (renewable up to twelve years); its rule-making powers were further reduced; impeachment was added to the causes for dismissal of public servants; and their political rights, such as the right to stand for an elective office, were recognized.[42]
In sum, it is plain that, from the American standpoint, what was enacted into law by the Japanese Diet in October 1947 was a watered-down version of the original draft. However, it would be too simplistic to view the revisions in the hands of the Japanese as the product of the bureaucracy's scheme to perpetuate its power. The notion of a powerful central personnel agency, although by no means alien to the Japanese, evoked fear and resistance from the Left and the Right alike. The entrenched bureaucrats justifiably saw the danger of the erosion of their power, whereas proponents of democracy feared that the proposed agency might help perpetuate the privileged position of senior bureaucrats. The near-unanimous support for the guarantee of labor and political rights for public servants, moreover, stemmed primarily from the widespread desire for democratization.
The First Revision Of The Law
So long as the Occupation continued and Hoover remained as chief of the civil-service division, however, the Japanese had but a slim chance of getting away with what they had done. Upon returning to his post in November 1947, Hoover was infuriated to learn of the fate of his draft and assigned a top priority to the revision of the law. Simultaneously, he initiated the process of organizing and staffing the Temporary National Personnel Commission and collecting information on the structure, functions, and key personnel of the various ministries and agencies.[43]
A detailed schedule of operations prepared by the civil-service division reflected Hoover's determination to guide the Japanese every
[42] Ide, Nihon kanryosei , pp. 202-03.
[43] Asai, Shinpan kokka komuinho seigi , p. 4; "Zadankai: Jinji-in no omoide arekore" [Roundtable Discussion: Recollecting Aspects of the National Personnel Authority], Jinji-in geppo 100 (June 1969): 11; SCAP, Political Reorientation , pp. 253-55.
step of the way toward the goal of implanting a new civil-service system on their soil. However, practical difficulties hampered his task. The official history of the Occupation dealing with civil-service reform, prepared under Hoover's supervision, noted that the need to rely on "remote control," the language barrier, and cabinet reshuffles had contributed to unforeseen delays.[44]
The language barrier appears to have been a major source of difficulty, for the Japanese complained of the low caliber of translators in the SCAP General Headquarters. Most of the translators were nisei (second-generation Japanese born in the United States) who did not understand the legal terminology so prevalent in the vocabulary of Japanese government.[45] Indeed, the ease with which the Japanese succeeded in circumventing the intentions of SCAP with regard to the initial enactment of the national public-service law probably had a great deal to do with the language barrier, which had been turned into an advantage by the Japanese.[46]
These problems notwithstanding, the civil-service division took complete charge of recruiting the staff for the Temporary National Personnel Commission. In January 1948 it devised an open competitive examination, had it translated into Japanese, and supervised its administration. A quarter of about one thousand persons who took the examination were selected and given the first basic-training course, also devised by the civil-service division. Not only was the training material prepared by the Americans, but lectures were delivered by American instructors in English and then translated into Japanese. Members of the first class of this training program, which lasted for five months, were utilized as discussion leaders in the next session, which was shortened to two months. Thereafter, Japanese instructors took over the classes.[47]
[44] SCAP, Political Reorientation , pp. 255-56. The schedule of operations is reproduced on p. 255.
[45] Ashitate Chuzo, "Kohei shinsa no omoide" [Recollections of the Equity Process (i.e., evaluation of complaints concerning adverse action against civil servants)], Jinji-in geppo 274 (Dec. 1973): 18-19.
[46] This episode exemplified the general tendency of Japanese bureaucrats and politicians to engage in subtle subversion of SCAP policy whenever the latter was perceived as threatening. In the words of a perceptive Japanese observer: "Although [Japanese politicians and bureaucrats] permitted themselves no display of open opposition, they attained their ends by undercover resistance of various kinds. Agreeing to the principle of a given reform, they very often succeeded in subtly changing its nature in the course of carrying it out." Masataka Kosaka, 100 Million Japanese: The Postwar Experience (Tokyo: Kodansha International, 1972), p. 50.
[47] "Zadankai: Jinji-in no omoide arekore," p. 11; Nagahashi Susumu, "Kaisobun: Jinji-in sosetsu no koro" [Reminiscences: the Early Days of the National Personnel Authority], Jinji-in geppo 274(Dec. 1973): 16-17; SCAP, Political Reorientation , p. 257.
Meanwhile, work on the revision of the national public-service law proceeded, and a series of proposed amendments was completed in May 1948. Continuing labor unrest, particularly "strikes and other dispute tactics on the part of organized government employees" underscored the urgency of prompt legislative action. However, "serious differences of opinion . . . developed between the Government Section's Civil Service Division and the Economic and Scientific Section's Labor Division on such questions as scope of coverage of the National Public Service Law, the meaning of collective bargaining as applied to government workers, and the use of strikes or dispute tactics against the government." The impasse was broken by General MacArthur on 6 July; on 22 July he sent a letter to the prime minister of Japan suggesting that the law be revised in accordance with his recommendations.[48]
Given the realities of the Occupation, the MacArthur letter had the force of a command, leaving the prime minister no option but to comply. Addressing the various weaknesses in the existing law, MacArthur laid a special emphasis on the prohibition of strikes by government employees. "No person holding a position by appointment or employment in the public service of Japan or in any instrumentality thereof should resort to strike or engage in delaying or other dispute tactics which tend to impair the efficiency of government operations," he wrote. In his view, "any person, holding such a position, who resorts to such action against the public of Japan thereby betrays the public trust reposed in him and forfeits all rights and privileges accruing to him by virtue of his employment." Recalling that the aim of civil-service reform was to ensure the democratization of Japan, he declared that the "success of this reform is accordingly no less a primary objective of the Occupation than it is a prerequisite to the future well-being of the people of Japan." Finally, he urged the prime minister to undertake "immediately" "a comprehensive revision of the National Public Service Law" along the lines suggested by him, promising all necessary assistance by the SCAP headquarters.[49]
The government of Prime Minister Ashida Hitoshi acted with dispatch. Within nine days of receipt of the letter, it promulgated a government ordinance (seirei ) temporarily prohibiting public servants from engaging in collective bargaining, strikes, or delaying or other dispute tactics. The ordinance specifically cited the letter from the
[48] SCAP, Political Reorientation , pp. 258-59.
[49] See the text of the letter in ibid ., vol. II, Appendixes, pp. 581-83.
Supreme Commander for the Allied Powers as the basis for the prohibition.[50]
Three days earlier, on 28 July, the Japanese government had received from Hoover SCAP's proposed amendments in both English and Japanese. Determined not to repeat the same mistake, Hoover had instructed the Temporary National Personnel Commission to prepare the Japanese translation in utmost secrecy. His apparent calculation that the commission, which would become a major beneficiary of the proposed revisions, would keep the vow of secrecy was off the mark. Asai Kiyoshi, then chairman of the commission, decided that, given the importance of the matter, he was duty-bound to apprise his government of the situation. Prime Minister Ashida, the chief and deputy chief of his secretariat, and a few other cabinet members thus became aware of what was happening. Hoover was reported to have been asked by the Japanese whether his proposals left any room for amendments and to have replied in the negative.[51]
The proposals sent a shock wave through both the Japanese government and, particularly, labor circles. The Ashida government therefore tried very hard to persuade SCAP to accept some amendments. In the end, only minor ones were allowed. On 9 November, a bill to revise the national public-service law was submitted to the Diet, convened especially for that purpose, by the newly formed second Yoshida government. Although the special Diet session proved to be turbulent, with the opposition parties trying to inject other issues, it nonetheless approved the bill in three weeks. Whereas the House of Representatives added a few minor amendments, the House of Councillors failed to do so because of the lack of time. The revised law was promulgated on 3 December 1948 and entered into force on the same day.[52]
Of the 125 articles in the original law, 32 had been extensively revised and 77 partially revised. Fourteen new articles had been added. Hence this represented a major overhaul of the law. Nonetheless, the key changes could be summed up under three headings:
First, the scope of the law was expanded. This was accomplished by shifting certain types of positions from the special government service to the regular government service. Examples of positions so affected
[50] Jinji-in, Jinji gyosei nijunen no ayumi [The Path of Twenty Years of Public Personnel Administration] (Tokyo: Okurasho, Insatsukyoku, 1968), p. 37.
[51] Asai, Shinpan kokka komuinho seigi , pp. 5-6.
[52] Jinji-in, Jinji gyosei nijunen , pp. 37-38; Ide, Nihon kanryosei , pp. 219-23.
were the director general of the cabinet legislation bureau, the vice-minister of each ministry, the counselor of each ministry, manual laborers, employees of the National Diet, court investigators, and certain personnel of government enterprises. All of these positions came within the purview of the national public-service law.
Second, the powers of the central personnel agency were strengthened. Not only was the name that SCAP had originally recommended, the National Personnel Authority (Jinji-in), restored, but its status was upgraded from that of an external agency (gaikyoku ) of the prime minister's office to a component agency of the cabinet. Its rule-making powers were enhanced: it now monopolized the power to make rules aimed at implementing the standards set in the national public-service law; the erstwhile requirement that all rules must be approved by the prime minister was jettisoned. The authority's financial position was bolstered by the acquisition of the privilege of "double budget": should the cabinet decide to revise the authority's proposed expenditures, it must submit to the Diet both the revision and the original request.
Third, measures to tighten discipline in the public service were introduced. This meant, primarily, that public servants were stripped of the right to strike and to employ delaying and other dispute tactics, were forbidden to run for elective offices or become officers in a political party or any other political organization, and were barred from all political activities other than voting. As a result, the gap between public servants and private-sector employees widened considerably.[53]